HKSAR v. CHAN WAI KIN

HCCC 130/2023

[2025] HKCFI 1350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 130 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 counts of trafficking in a dangerous drug before Magistrate Mr. Lam Tsz Kan, admitted to the summary of facts and was, on 15 May 2023, committed to the Court of First Instance for sentence.

PARTICULARS

COUNT 1

2.  The defendant on 22 June 2021, at the staircase landing between ground floor and 1^st floor, Hung Fat Building, Nos.94-100 Kwong Fuk Road, Tai Po, New Territories, unlawfully trafficked in a dangerous drug, namely 1,998 grammes of a solid containing 1,731 grammes of cocaine.

COUNT 2

3.  The defendant on 22 June 2021, at Room 2, Flat B, 4^th floor, of the same building, unlawfully trafficked in 3,001.74 grammes of a solid containing 2,623.75 grammes of cocaine and 290 grammes of cannabis in herbal form.

SUMMARY OF FACTS

4.  The defendant was intercepted coming out of Hung Fat Building at around 6:58pm on 22 June 2021, holding a red plastic bag, from which was found 2 blocks of solid containing the cocaine in count 1.

5.  Upon arrest and caution, he claimed that he was delivering the drugs for someone at $1,000 per delivery.  He told the Police that the drugs were taken from Room 2, Flat B on the 4^th floor of Hung Fat Building.  

6.  Using the keys found on the defendant, the Police entered Room 2, a small sub-divided flat, and found the dangerous drugs in count 2 there.

7.  More specifically, from a nylon bag on the floor, 3 packets containing a total of 2,997 grammes of a solid containing 2,620 grammes of cocaine were found.

8.  From a bag on some shelves, a bag containing 290 grammes of herbal cannabis and cash of $30,600 were found.  

9.  On the table inside the room was a plastic box with 13 small plastic bags inside, containing a total of 4.74 grammes of a solid containing 3.75 grammes of cocaine.  Two electronic scales, with traces of cocaine and 0.01 gramme of cocaine respectively; a pile of resealable plastic bags and the tenancy agreement of Room 2 were also on the table.

10.  The defendant was cautioned at scene, and he said he helped others to deliver the drugs found in Room 2.

11.  In the subsequent video recorded interview, the defendant told the Police that he began working for a man who approached him on the internet inviting him to earn quick money by delivering drugs in January 2021.  The defendant was instructed to pick up a mobile phone at a park in Tai Po for communication, and to buy some electronic scales and re-sealable plastic bags.  The defendant rented Room 2 at $4,500 per month with him as the only occupant.

12.  The man would instruct the defendant to pick up packs of 12 or 24 grammes of cocaine at the park, which were then re-packaged into smaller packets of 0.18 grammes by the defendant and delivered to buyers as instructed.

13.  Each small packet would be sold at $300 and the defendant would receive $50 for each delivered.  The defendant would leave the drugs proceeds at the park for someone else to pick up.

14.  In June 2021, the man told the defendant to pick up a nylon bag at the park, which the defendant did.  The defendant was later told to deliver 2 of the cocaine blocks inside the bag to a park and to leave them in a flower bed.  He was promised $1,000 for each delivery of the cocaine blocks.

15.  The defendant was intercepted by the Police while making the delivery of the 2 cocaine blocks inside the red plastic bag that he was carrying.  The $30,600 cash seized from the defendant upon his arrest was drug proceeds.

16.  Investigation revealed that the defendant rented Room 2 in his own name, with the lease running from August 2020 for 2 years, and photos and videos of the cocaine were found in a mobile phone seized from the defendant.  

17.  At the time of the arrest, the street value of cocaine powder is estimated to be HK$5,879,706 (at $1,176 per gramme); of crack cocaine is HK$7,569,622 (at $1,514 per gramme); and the herbal cannabis is at $50,750 (at $175 per gramme).

18.  By way of his admission to the summary of facts, the defendant confirmed that he was in possession of all the dangerous drugs particularized in counts 1 and 2 for the purpose of unlawful trafficking.  

PREVIOUS CONVICTIONS

19.  The defendant is of previously clear record.

BACKGROUND AND MITIGATION

20.  The defendant was born in mainland China in March 1995 and is now 29 years old.  He came to Hong Kong with his father when he was 5.  His father passed away 4 years later.

21.  The defendant received education up to Form 3 level.  After idling for some time he started working when he was 18, earning around $16,000 per month as a reinforcement fixing worker and renovation worker.  He worked as a security guard later on, making $19,000 per month.  The defendant contributed $2,000 a month to his mother who is a part-time worker.  

22.  The defendant lost his job during the pandemic.  He had little savings and was not able to make ends meet.  Meanwhile, his relationship with his mother deteriorated and the defendant decided to move out, renting Room 2 since August 2020.

23.  Moving out increased his financial burden and he resorted to borrowing from friends and later from banks and finance companies.  

24.  At around the same time, the defendant came to know a person named Chiu Ka Keung, who suggested for the defendant to deal with dangerous drugs to make some quick money.  The defendant refused.

25.  However, as the defendant’s financial situation worsened, and with Chiu’s persistent persuasion, he eventually succumbed to the repayment pressure from his creditors and agreed to help Chiu deal in dangerous drugs.  

26.  Chiu then introduced the defendant to a man named Lee Chi Kong.  Lee and Chiu told the defendant to buy 2 mobile phones.  

27.  Around 10 June 2021, they instructed the defendant to pick up the dangerous drugs from somewhere outside and to bring them back to his room.  10 days later, they told the defendant to bring some of the dangerous drugs to a designated place.  That was when the defendant was intercepted and arrested by the Police in this case.

28.  Mr. Chau for the defendant pointed out that the defendant had a clear record, that he had confessed as well as pleaded guilty at the earliest opportunity.  The defendant is willing to assist the Police, but as at the time of sentencing, nothing had materialized yet.  

SENTENCE

29.  The maximum sentence on conviction upon indictment for the offence is that of life imprisonment and a fine of $5 million.  

30.  First of all, although the drugs were found from two locations, which led to the prosecution laying two charges, given the proximity in time and locale of the two offences, I find that the defendant should be sentenced on the total quantity of drugs found.

31.  Secondly, for 290g of herbal cannabis, the sentence would be in the range of 3 months’ imprisonment after trial[1], whereas the sentence for trafficking in the cocaine for the two counts will be more than 23 years after trial.  I find that the lengthy sentence for trafficking in the cocaine is sufficient punishment in the circumstances, and I exercise my discretion to disregard the cannabis when deciding on the notional starting point.  

32.  Having said that, the fact that the defendant was trafficking in more than one type of dangerous drugs in count 2 is still a recognized aggravating factor[2], and the sentence will be enhanced on this basis, which will be dealt with below.

APPLYING HERRY JANE YUSUPH

33.  The guidelines and 6-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[3], as read in conjunction with HKSAR v Lee Ming Ho[4] are applied as follows.

Step 1: The applicable guideline tariff bands

34.  The parties agreed to the application of the latest sentencing guidelines as updated in the case of HKSAR v Huang Ruifang [2025] HKCA 234 for cocaine.

35.  For the 1,731g of cocaine in count 1, the updated applicable guideline tariff band is that of “20 to 24 years’ imprisonment”.

36.  For the 2623.75g of cocaine in count 2, the same tariff band applies.

37.  For the combined quantity of 4,354.75g of cocaine in the two counts, the applicable guideline tariff band is still of “20 to 24 years’ imprisonment”.

Step 2: The defendant’s role and culpability

38.  The defendant’s role was that of a courier as well as that of a storekeeper since he also took part in re-packaging some of the drugs.

39.  There is insufficient evidence to suggest that the defendant was a direct trafficker.  Although $30,600 drugs proceeds were found on the defendant when he was intercepted on the street, this circumstantial evidence alone would not allow the court to infer that he must have been a direct trafficker.

40.  As such, the defendant is sentenced on the basis of him being a courier and storekeeper.

Step 3: The relevant band within the guidelines

41.  Based on my finding of the defendant’s role and culpability, I would adopt a combined global starting point of 280 months for 4,354.75g of narcotics, which is the arithmetical starting point for a courier or storekeeper.

42.  For the 1,731g of cocaine in count 1, the individual starting point would be 243 months, whereas for the 2,623.75g in count 2, it would be 255 months.

Step 4: Aggravating factors

43.  The only aggravating factor in this case is the fact that the defendant was trafficking in two different kinds of dangerous drugs in count 2.  Given the big difference in quantity, with the herbal cannabis being just about 6% of the total quantity of dangerous drugs, I will enhance the global starting point by 5 months, taking the notional sentence after trial up to 285 months.

Step 5: Mitigating factors

44.  On the original day of sentencing, I was informed that the defendant had made a non-prejudicial statement.  The case was adjourned pending investigation by the Police.  

45.  Upon return, I was told that the suspect mentioned in the defendant’s statement had left the jurisdiction and his whereabouts is not known.  

46.  Despite there being no arrest, it is obvious that the defendant did try his best to assist the police, and that the suspect is likely to have had some connection to the trafficking of dangerous drugs or else he would not have fled the jurisdiction. This information may yet prove to be helpful to the police in future.  Therefore, for this assistance rendered, I will grant an overall discount of slightly more than 38%, resulting in a sentence of 176 months after plea.

Step 6: Totality

47.  I have looked at the total notional sentence after trial of 285 months, and I am of the view that it is a fair, just and balanced sentence in all the circumstances of the offences and the defendant.  

FINAL SENTENCE

48.  The global sentence for the two counts after plea is, therefore, 176 months’ imprisonment after granting the defendant the 38% discount.

49.  To achieve this sentence, in relation to count 1, I sentence the defendant to 150 months after plea, in relation to count 2, to 158 months after plea.

50.  I order 26 months of the sentence in count 2 to be served consecutively to the sentence in count 1, the balance concurrently, leading to the final sentence of 14 years and 8 months’ (176 months) imprisonment.

THE SENTENCE IN DCCC 1044/2022 AND 707/2023

51.  The defendant pleaded guilty in two District Court cases and was sentenced on 3 March 2025 at the District Court to 11 months’ imprisonment.  There is, therefore, a need to consider the issue of totality when sentencing the defendant in the present case.  Neither the prosecution nor the defence was able to clarify how much of that sentence had been served, if at all, by the defendant in the District Court case.  For the reasons below, I can still proceed to sentence the defendant despite this lack of information.  

52.  The District Court cases concerned money laundering that took place between 6 May 2020 and 7 November 2020.  The defendant was cautioned for the money laundering on 21 August 2021, by that time he had already been arrested and detained for the present trafficking in dangerous drugs offences.  He did not commit the drug offences whilst on bail.  

53.  There is no suggestion that the money laundering was linked to the present trafficking in dangerous drugs.  They are offences of a different nature and took place months apart from the trafficking.  The defendant committed the present offences knowing that he had earlier committed the money laundering offences.  I find that there is no reason why the defendant should not be punished separately for the crimes he committed separately.  

54.  I have also considered whether such a sentence will be crushing for the defendant, and concluded that it would be no more crushing than the sentence that he is already facing for the trafficking, which I have held is the appropriate sentence to pass given the circumstances.  

55.  I, therefore, order the sentences in the two District Court cases to be served wholly consecutively to the present sentences.